NORTHERN VIRGINIA SERVICE
CORP., 1987-CBV-3 (Sec'y July 17, 1991)
CCASE:
NORTHERN VIRGINIA SERVICE CORPORATION
DDATE:
19910717
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: July 17, 1991
CASE NO. 87-CBV-3
IN THE MATTER OF
APPLICABILITY OF WAGE RATES COLLECTIVELY
BARGAINED BY NORTHERN VIRGINIA SERVICE
CORPORATION AND LABORERS' INTERNATIONAL
UNION OF NORTH AMERICA, AFL-CIO,
LOCAL 16, TO EMPLOYMENT OF SERVICE
EMPLOYEES UNDER A CONTRACT FOR
CUSTODIAL SERVICES AT KIRTLAND
AIR FORCE BASE, NEW MEXICO.
BEFORE: THE SECRETARY OF LABOR /FN1/
FINAL DECISION AND ORDER
This case is before me on a Petition for Review (Petition)
filed by the Laborers' International Union of North America,
AFL-CIO, Local 16 (LIUNA), under the McNamara-O'Hara Service
Contract Act of 1965, as amended (MOSCA or the Act), 41 U.S.C.
[secs] 351-358 (1988), and its implementing regulations, 29 C.F.R.
Parts 4, 6 and 8 (1990). LIUNA seeks review of the August 18,
1988, Decision and Order (D. and O.) of Chief Administrative Law
Judge (ALJ) Nahum Litt finding that the collectively bargained
wages and fringe benefits for employees performing custodial [1]
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/FN1/ Previously the Deputy Secretary was designated by the
Secretary to perform the functions of the Board of Service Contract
Appeals pending the appointment of a duly constituted Board. 29
C.F.R. [sec] 8.0 (1990). As there presently is a vacancy in the
Office of Deputy Secretary, the Secretary has reassumed the Board's
function pursuant to 29 C.F.R. [sec] 8.0. [1]
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[2] services at Kirtland Air Force Base (Kirtland), Albuquerque,
New Mexico, are in substantial variance with those prevailing for
employees working under similar conditions of employment in the
locality. The ALJ recommended that the Wage and Hour Division
issue a new Wage Determination.
The Air Force (AF) opposes the Petition for Review. The
Wage and Hour Administrator filed a Motion to Dismiss which the
AF also opposes. LIUNA has filed a Supplemental Brief supporting
the Motion to Dismiss.
The dispute concerns the wage rates to be paid to Northern
Virginia Service Corporation (NVS) employees performing custodial
services at Kirtland. The challenged wage rates are in the
collective bargaining agreement (CBA) between NVS and LIUNA.
The proceeding originates from an Order of Reference issued
February 2, 1987, pursuant to a request for hearing under Section
4(c) of the Act. /FN2/ The Order of Reference indicated that
there [2]
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/FN2/ Section 4(c) provides --
No contractor or subcontractor under a contract, which
succeeds a contract subject to this chapter and under
which substantially the same services are furnished,
shall pay any service employee under such contract less
than the wages and fringe benefits, including accrued
wages and fringe benefits, and any prospective increases
in wages and fringe benefits provided for in a
collective-bargaining agreement as a result of
arm's-length negotiations, to which such service
employees would have been entitled if-they were employed
under the predecessor contract: Provided, That in any of
the foregoing circumstances such obligations shall not
apply if the Secretary finds after a hearing in
accordance with regulations adopted by the Secretary that
such wages and fringe benefits are substantially at
variance with those which prevail for services of a
character similar in the locality. [2]
[FN2 CONTINUED ON PAGE 3] 41 U.S.C. [sec] 353(c). [3]
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[3] was enough evidence to warrant a hearing to resolve whether a
substantial wage variance exists.
In support of the motion to dismiss the Administrator
contends that this matter is moot because the collectively
bargained rates, wage determination and contract at issue were
no longer in effect as of October 1, 1988. /FN3/ The regulations
specifically provide that the Secretary's decision after a
variance hearing does not apply retroactively:
The legislative history of the 1972 Amendments makes
clear that the collectively bargained "wages and fringe
benefits shall continue to be honored * * * unless and
until the Secretary finds after a hearing, that such
wages and fringe benefits are substantially at variance
with those prevailing in the locality for like services"
(S. Rept. 92-1131, 92nd Cong., 2d Sess. 5). Thus,
variance decisions do not have application retroactive to
the commencement of the contract.
29 C.F.R. [sec] 4.163(c). Under the circumstances here, a petition
for review is moot. In the Matter of Applicability of Wage Rates
Collectively Bargained by the New LTR CorPoration, etc., Case [3]
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/FN3/ A successor (extension) contract which commenced October 1,
1988, was subject to a new wage determination, No. 80-887 (Rev. 9).
Administrator's Motion to Dismiss at 3. I take administrative
notice that during the pendency of this case, the Administrator
ordered hearings in a second case to examine the wage rates in a
later collective bargaining agreement and WD No. 80-887 (Rev. 9)
covering the same workers at Kirtland, In the Matter of
Applicability of Wage Rates Collectively Bargained by Northern
Virginia Service Corporation, etc., Case No. 89-CBV-2. In Case No.
89-CBV-2 the Chief ALJ concluded that the collectively bargained
wage rates were not "substantially at variance" with locally
prevailing rates. The Air Force's petition for review of that
decision is currently pending. LIUNA Supplemental Brief at 2. [3]
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[4] No. 86-CBV-1, Dec. Dep. Sec., Feb. 22, 1991, slip op. at 3; In
the Matter of Applicability of Wage Rates Collectively Bargained
by Harry A. Stroh Associates, Inc., etc., Case No. 84-CBV-2,
Dec. Dep. Sec., Apr. 8, 1988. Cf. Northwest Forest Workers
Association, Case No. 85-SCA-10, Dec. Under Sec., Oct. 10, 1985,
slip op. at 6.
The AF argues that, nonetheless, this matter should be
viewed as an exception to the mootness doctrine citing the
"'capable of repetition, yet evading review' exception to the
mootness doctrine. Weinstein v. Bradford, 423 U.S. 147, 149
(1975)." AF Opp. to Mot./Dismiss at 11. The AF contends that
the same issues presented for review here arise in Case No.
89-CBV-2, see note 3 supra, and thus fall under the mootness
exception. Id.
A key factor in the ALJ's finding a substantial variance
here involved the appropriate use and consideration of Federal
wage rates. The ALJ found that:
The Federal wage rates that the union included were
already considered by the Administrator of the Wage and
Hour Division of DOL when the SCA Wage Determination was
made. The Act mandates that the prevailing wage
determination for service employees in the locality be
determined only after "due consideration" is given to the
Federal service employees wage rates. 41 U.S.C. 2(a)(5),
29 C.F.R. [sec] 4.50(a). Therefore, it is not necessary
to rely on the Federal wage rates separately, as the
union asks. As the DOL representative explained at the
hearing, the Secretary's determination of prevailing
rates, through her Administrator, is discretionary and
not reviewable. (Tr. 112). The prevailing wage rate of
$4.75 for janitor, porter or cleaner was arrived at only
after the Administrator gave "due consideration" to the
federal rates. (AF 7). [4]
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[5] D. and O. at 10. The ALJ thus declined to treat Federal wage
rates as an additional, separate factor in finding a substantial
variance. I need not use this case to determine the appropriate
analysis and use of Federal wage rates in a substantial variance
determination because this was addressed recently in In the
Matter of Applicability of Wage Rates Collectively Bargained by
United HealthServ, Inc., etc., Case Nos. 89-CBV-1, 5, 7, 10, 11,
12, 16 and 17, Dec. Dep. Sec., Feb. 4, 1991. That decision
provided guidance, inter alia, as follows:
I am persuaded that Federal wage rates constitute
evidence of prevailing rates and that they warrant
consideration in the Section 4(c) context.
* * * *
[T]he Federal wage board rates and surveys represent an
important measure in gauging whether a given variance is
"substantial," as do the BLS surveys and other relevant
wage data, including evidence of other collectively
bargained wages and fringe benefits.
* * * *
Reference to Federal wage board information appears
appropriate in gauging deviation. The Federal wage board
rates and surveys provide a measure of rates which
prevail among private industry employees surveyed and
among the Federal employees who are not displaced by
service contracts and who are compensated according to
these rate schedules. These rates are significant in
establishing a frame of reference against which to assess
whether a variance exists and, if so, whether it is
substantial.
Slip op. at 15, 19, 22. Thus, AF's concern that the salient issues
in this case will evade review is without merit. [5]
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[6] Accordingly, the Administrator's Motion to Dismiss this
case as moot is GRANTED.
SO ORDERED.
[Lynn Martin]
Secretary of Labor
Washington, D.C. [6]
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